I.A.Saiyed vs State Of Maharashtra And Ors
2017 Latest Caselaw 5857 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATE JURISDICTION

                        WRIT PETITION NO. 2687 OF 2006

 I. A. Saiyed,
 Age 40, 
 20A, Lohar Chowl,
 Gai Wadi, Off Cadell Road
 Dargah, Mahim, Mumbai
 400 016.                                                       ... Petitioner

           Vs.

 1.        State of Maharashtra
           (Notice to be served on 
           the Government Pleader,
           High Court, Appellate Side,
           Mumbai 400 032.)

 2.        The Registrar of Trade Unions
           Having his office at 
           Mahalaxmi Chambers,
           Mumbai-Agra Road, Nasik.

 3.        Federation of Labour Law
           Practitioners' Association
           29, Ashok Garden, Gurdwara
           Road, Nasik 422 002.

 4.        The Bar Council of Maharashtra
           and Goa, through its Secretary,
           High Court, Annex Building,
           Mumbai.

 5.        Bar Council of India,
           21, Rouse Avenue, 
           Institutional Area,
           New Delhi - 110 002.                                 ... Respondents




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                                  ......
 Mr. P. M. Patel for the Petitioner.
 Mr. R. S. Pawar, AGP for Respondent No.1-State.
 Mr. Rahul L. Nerlekar for Respondent No. 3.
                                  ......

                               CORAM : S. C. DHARMADHIKARI &
                                           SMT. VIBHA KANKANWADI,  JJ.

DATE : AUGUST 11, 2017.

ORAL JUDGMENT (PER S. C. DHARMADHIKARI, J.) :

1. By this Petition under Article 226 of the Constitution of

India, the petitioner challenges the order passed by the 2nd

respondent dismissing the complaint preferred by the petitioner.

2. The impugned order is passed by the Deputy Registrar,

Trade Unions, a Authority under the Trade Unions Act, 1926,

Nashik Division, Nashik in Original Application No. 128 of 2005

and dated 31st December, 2005.

3. The only question that requires an answer in this Petition is

whether the Federation of Labour Law Practitioners' Association,

respondent no. 3 to this Petition, can obtain registration under the

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Trade Unions Act, 1926 (for short, 'the said Act') on the basis that

it is a Trade Union as defined in Section 2 clause (h) of the said

Act.

4. The petitioner, a practicing advocate and registered with the

Bar Council of Maharashtra and Goa, has filed this Petition

impleading the State of Maharashtra, the 2nd respondent-an

authority vested with the power to register Trade Unions under

the said Act, the 3rd respondent-Federation and equally, the Bar

Council of Maharashtra and Goa and the Bar Council of India.

5. The petitioner states that the position and status of an

advocate under the Advocates Act, 1961 cannot be lost sight of. It

is the Advocates Act, 1961 which applies to such professionals.

When such professionals organize themselves and form

associations, they may as well be permitted to do so and enroll as

members even non-advocates, but surely, such persons are

practicing before a Court of Law. In the present case, they are

practicing before the Labour and Industrial Courts across the State

of Maharashtra. They have formed associations at district level

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and such district level associations have, thereafter, organized

themselves into a Federation which is the 3rd respondent. In that

sense, it is an apex body of the associations at the district level.

However, but for the Mumbai Association of Labour Law

Practitioners, other associations have obtained registration under

the said Act. Such registration could not have been obtained by

them, nor the authority could have issued a certificate of

registration as Trade Union. That is how the petitioner -

complainant, invoking Section 10 of the said Act, applied for

cancellation of the registration in favour of the 3rd respondent to

this Petition. He made the requisite application, alleging that the

certificate has been obtained by mistake. The authority has been

misled in believing that this is a Trade Union and which satisfies

the requirement stipulated in the definition of the said term as

appearing in Clause (h) of Section 2 of the said Act.

6. After alleging thus, and making an application in the

prescribed form for cancellation of registration, the petitioner

realized that the illegality in the grant of certificate of registration

was not corrected. The petitioner was, therefore, constrained to

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approach this Court. It is the grievance of the petitioner that an

application seeking cancellation of registration was made to the

Deputy Registrar functioning at Nashik. It is from that Registrar's

office that the certificate was obtained by the 3rd respondent. The

petitioner was called upon to appear before the Registrar pursuant

to his complaint. However, as there was no action taken pursuant

to his complaint, that the petitioner moved a Writ Petition in this

Court being Writ Petition No. 6128 of 2005. The Petition was filed

seeking a mandamus or any other appropriate writ, order or

direction in the nature thereof, directing this Deputy Registrar,

Trade Unions, Nashik, to decide the application for cancellation of

registration in accordance with law.

7. On such a Petition, this Court made the following order on

22nd September, 2005:

"- Rule. Heard forthwith. The main relief as sought in the petition by the petitioner is the respondent No.2 be directed to scrutinise the complaint of the petitioner dated 24th February, 2005 at Exhibit "A" to the petition and adopt necessary action thereof in a time bound manner. On behalf of the respondents who have put in appearance, their learned Counsel submit that there is a Civil suit pending being S.C. Suit No.3323 of 2005 filed

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before the Bombay City Civil Court at Mumbai and in these circumstances the petitioner should elect either to proceed under the provisions of the Trade Unions Act or in a Civil Suit and not both.

2. At this stage it is not necessary for us to decide the controversy considering the order to be passed. The application by the petitioner before the respondent No.2 is under Section 10 of the Trade Unions Act. Considering that, we direct the respondent No.2 to dispose of the representation, if need be, by giving a fresh hearing to all the parties. It is made clear that it will be open to the contesting respondents to raise all objections including the objection that the respondent No.2 cannot exercise jurisdiction bedcause a Civil Suit is pending. We make it clear that we have not decided any issue on merits and all questions are left open in law before the respondent which he has to consider while disposing of the application under section 10 of the Trade Unions Act. Considering the controversy the respondent No.2 is directed to dispose of the representation within three months from the date of first appearance of the parties before the respondent No.1 on 7 th October, 2005 at 3.00 p.m.

3. With the above observations, petition disposed of accordingly."

8. It is pursuant to this order and direction of the Court that

the 2nd respondent made the necessary inquiry. He came to the

conclusion that the certificate of registration is not vitiated in the

manner set out in Section 10 of the said Act.

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9. It is this order which is challenged in this Petition.

10. Mr. Patel, learned counsel appearing for the petitioner

would submit that the 3rd respondent is an association of Labour

Law Practitioners. He would submit that the association may

comprise of the Labour Law Practitioners, who need not

necessarily be advocates enrolled under the Advocates Act, 1961.

They could be consultants or representatives permitted to appear

and address the Labour Courts or practice in Labour Law.

However, given the definition of the term 'Trade Union' as

appearing in Section 2 Clause (h) and the further provisions of the

said Act enabling registration of a Trade Union, the 3rd

respondent could not have been registered as a Trade Union. Even

if the member associations were registered as a Trade Union, with

the exception of the Mumbai Association, still such Federation

does not answer the definition of the term 'Trade Union'. The

certificate was obtained and granted under mistake.

11. Mr. Patel would submit that as a responsible and

honourable member of the legal profession, the petitioner brought

to the notice of the authorities under the said Act that a

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registration obtained and granted under a mistake or the authority

being misled about the status and position of the 3rd respondent

in law, deserves to be cancelled forthwith. Registration of a Trade

Union mandates that it is qua an industry or a specific industry.

The registration is qua an industry and not in the abstract or in

vaccum. Therefore, unless and until the pre-condition and pre-

requisites set out in law were satisfied, such registration could not

have been granted. The grant of registration is ex facie illegal and

it must be cancelled.

12. Mr. Patel has made a serious grievance that barring

reproduction of the rival versions, the 2nd respondent, who is

duty bound in law to rule upon the petitioner's complaints or

objections, has failed to render any decision in accordance with

the mandate of the said Act. He was directed to dispose of the

complaint. That complaint alleged that the registration of the 3rd

respondent was obtained or granted under mistake, i.e. is a

mistake of law. On such serious complaint, beyond reproducing

the rival versions, the authority has not rendered any finding and

conclusion, much less assigned any cogent and satisfactory

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reasons to dismiss petitioner's complaint. That was the duty and

obligation on him and if he has failed to perform it, then, such an

order can be interfered with by this Court in its writ jurisdiction.

The writ jurisdiction is meant, and particularly through a writ of

certiorari, to ensure that a authority and the tribunals subordinate

to this Court act within the limits of their powers and jurisdiction.

If they fail to exercise the authority vested in them by law or

exceed such authority, power and jurisdiction, then, in writ

jurisdiction, this Court can interfere and quash and set aside their

orders. If the orders are vitiated by an error of law apparent on

the face of record or by perversity, then, as well, this Court can

interfere in its writ jurisdiction.

13. Looked at from any angle, according to Mr. Patel, the

impugned order which sustains the registration certificate,

deserves to be quashed and set aside.

14. On the other hand, Mr. Nerlekar appearing for the

contesting respondent would submit that this Petition is not

maintainable and deserves to be dismissed. The petitioner is not a

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member of the association. It is a federal or apex body of the

member associations registered at district level. Though an

individual may or may not be a member of the district level

association, but surely, he has no locus or status in the apex level

body. In such circumstances, no right vests in the petitioner to

complain about the certificate of registration, nor can any

prejudice be caused to him. In such circumstances, the Petition

deserves to be dismissed.

15. Alternatively, and without prejudice, Mr. Nerlekar would

submit that the petitioner has an alternate and equally efficacious

remedy of an appeal under the said Act to impugne and challenge

the subject decision. Further alternatively and without prejudice,

it is submitted that the petitioner has failed to implead necessary

parties, namely, the associations-members of the Federation, who

are also going to be affected adversely for they are also registered

as Trade Unions, as party respondents. They being necessary

parties, their non-joinder is fatal. It is contended that the

Federation is an association of member associations who have

obtained registration under the said Act. If that registration

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remains intact and has not been challenged or questioned, then,

the 3rd respondent's registration cannot be challenged. Apart

therefrom, the definition of the term 'Trade Union' must be read in

a proper perspective. So read, and in the context, it would be clear

that Trade Union means any combination, whether temporary or

permanent, formed primarily for the purpose of regulating the

relations, and when there are two or more Trade Unions, there

could be a Federation of Trade Unions within the meaning of this

definition. If the regulations, the aims and objects of the 3rd

respondent-Federation are noted, then, its registration is not

illegal. The definition must be broadly and widely construed so as

to subserve the object of the Act. For all these reasons, it is

submitted that the Petition be dismissed.

16. In support of his submissions, Mr. Nerlekar would rely upon

the following two decisions:

1. Vinoy Kumar vs State of U.P. & Others, reported in (2001) 4 Supreme Court Cases 734 and

2. Anand Sharadchandra Oka vs University of Mumbai & Others, reported in (2008) 5 Supreme Court Cases 217

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17. For properly appreciating the rival contentions, we must

first notice the undisputed facts. It is common ground that the 3rd

respondent is a Federation of the district level associations. The

district level associations have Labour Law Practitioners as

members. These Labour Law Practitioners may or may not be

advocates enrolled within the meaning of the Advocates Act,

1961. However, the grievance of the petitioner was specific that

he made a complaint. The complaint was that the 3rd respondent

could not have been registered as a Trade Union. The registration

granted to it is under a mistake of law. The argument was that the

application for registration was made by suppressing a material

fact that such a registration was not obtained or attempted to be

obtained, but that was not granted. This was qua the Labour Law

Practitioners' Association, Mumbai. The other associations and

operating at district level may have obtained such registration, but

they must answer the requirement for obtaining such registration

as specified by the said Act.

18. Before we advert to the rival contentions on the

interpretation of the definition of the term 'Trade Union' as

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appearing in the said Act, we must dispose of certain objections

raised by Mr. Nerlekar to the locus of the petitioner and the

maintainability of the Writ Petition.

19. Mr. Nerlekar relied upon a judgment of the Hon'ble

Supreme Court in the case of Vinoy Kumar (supra). There, the

petitioner, an advocate before the Supreme Court, was aggrieved

by the orders passed by the District and Sessions Judge, Varanasi

dated 13th February, 2001, transferring a number of criminal

cases for disposal to the Additional District and Sessions

Judge/Special Judge. The advocate represented the accused in

three of such transferred cases. He filed a Writ Petition in the High

Court praying that the transfer order be quashed. The Writ

Petition was dismissed by the High Court holding that the

petitioner being an advocate, has no locus standi to challenge the

legality of the said order by way of a Writ Petition. The ratio laid

down in para 2 of this decision is well known and well settled, but

its applicability to the given facts and circumstances is what is

relevant. Before us is a petitioner who, not just as an advocate, but

as a complainant, alleged that a certificate of registration issued in

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favour of the 3rd respondent deserves to be cancelled. Section 10

of the Trade Unions Act, 1926 reads thus:

"10. Cancellation of Registration.- A certificate of registration of Trade Union may be withdrawn or cancelled by the Registrar-

(a) on the application of the Trade Union to be verified in such manner as may be prescribed, or

(b) if the Registrar is satisfied that the certificate has been obtained by fraud or mistake, or that the Trade Union has ceased to exist or has wilfully and after notice from the Registrar contravened any provision of this Act or allowed any rule to continue in force which is inconsistent with any such provision, or has rescinded any rule providing for any matter, provision for which is required by section 6;

(c) if the Registrar is satisfied that a registered Trade Union of workmen ceases to have the requisite number of members:

Provided that not less than two months' previous notice in writing specifying the ground on which it is proposed to withdraw or cancel the certificate shall be given by the Registrar to the Trade Union before the certificate is withdrawn or cancelled otherwise than on the application of the Trade Union."

20. A perusal of this provision would indicate that a certificate

of registration of a Trade Union may be withdrawn or cancelled by

the Registrar. It can be done on an application of the Trade Union

and which application would have to be verified in such manner

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as may be prescribed by the Rules, or if the Registrar is satisfied

that the certificate has been obtained by fraud or mistake, or that

the Trade Union has ceased to exist or has wilfully and after

notice from the Registrar contravened any provision of this Act or

allowed any rule to continue in force which is inconsistent with

the provisions of the said Act, or has rescinded any rule and in the

manner set out by clause (b) of Section 10. Section 10 enables

cancellation of registration on the satisfaction of the Registrar as

set out in clause 'c' as well.

21. It is not the argument of Mr. Nerlekar that in the scheme of

Section 10, no complaint or application of the nature made by the

petitioner-complainant can be entertained or is maintainable. The

argument is that the petitioner personally has no vested or legal

right to question the registration.

22. The reliance placed by Mr. Nerlekar on the other judgment

of the Supreme Court in the case of Anand Sharadchandra Oka

(supra) is equally misplaced. There, the respondent University

issued a notification calling for applications from registered

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graduates in the prescribed form for getting their names registered

in the electoral roll for electing ten members in the Senate of the

University. The petitioner, holding a LL.M. degree, applied for

registration of his name in the said roll. He was holding a LL.M.

degree from the University of Mumbai. However, the University

addressed a letter to him, calling upon him to submit his

Bachelor's degree certificate obtained from the University of

Mumbai. The argument of the petitioner was that, once he has

obtained a Master's degree or Doctoral degree from the University

of Mumbai, his name can be included in the electoral roll. He

cannot be denied registration only on the ground that he had not

obtained graduate degree from the said University. The petitioner,

even after the election, pursued his challenge to the requirement

that he must be a graduate from the University of Mumbai. In the

2nd Writ Petition, it was argued inter alia that the petitioner was

not an aggrieved party. Upholding that objection, the Petition was

dismissed. The argument having been upheld and the Petition

being dismissed, the petitioner approached the Hon'ble Supreme

Court of India. It is in that context the observations were made in

paragraph nos. 11 and 12 of judgment of the Hon'ble Supreme

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Court and heavily relied upon by Mr. Nerlekar. Once again, we

must not forget the background facts and circumstances in which

such observations were made by the Hon'ble Supreme Court. The

Rule or the requirement having not been questioned, the litigation

being not in the nature of Public Interest Litigation, that the locus

of the petitioner was questioned and the objection in that regard

was upheld.

23. Such is not the position obtaining from the record before us.

The petitioner made a complaint by pointing out that a certificate

of registration obtained by the 3rd respondent-Federation was

under an obvious mistake. If the Federation is not trying to correct

that mistake or the Registrar himself has failed to act and to

correct such mistake, the petiotioner approached with a complaint

or an application in writing in that behalf. That complaint or

application of the petitioner was not being disposed of by the

statutory authority. The inaction of the statutory authority led to

the petitioner filing a Writ Petition in this Court and succeeding in

obtaining a direction to that authority for disposal of his complaint

in accordance with law. It is thereupon that the impugned order

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has been passsed. If such an order is vitiated, according to the

petitioner, in law, we cannot dismiss this Writ Petition now, at this

belated stage, on the ground of his locus. If he had a locus or could

have maintained the application or complaint seeking to challenge

the registration by alleging that it was granted by a mistake of

law, then, we do not see how, when he is aggrieved by a order of

dismissal of his complaint, he can be prevented from approaching

this Court in its writ jurisdiction. Admittedly, his objection was of

the above nature and which has been turned down on merits. We

can certainly, therefore, entertain this Petition.

24. We also do not find any substance in the technical objection

to the maintainability of this Petition on the ground that there is

an alternate remedy. The wording of Section 11 is clear. If the

certificate was cancelled or registration was revoked, that

aggrieved person has a right to appeal. The petitioner was not

making a prayer of that nature, but was seeking a cancellation of

registration. That prayer has been rejected. Obviously, he has no

remedy under the said Act to challenge such an order. Hence, the

argument on the point of alternate remedy has also no substance.

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25. Equally untanable in law is the argument that the necessary

parties are not impleaded. The necessary parties to this Petition

are the State, functionary under the said Act and the 3 rd

respondent which is a Federation of the member associations of

Labour Law Practitioners operating at District Level. That such

individual member associations are not impleaded as party

resopndents cannot be, therefore, the objection once the

Federation is impleaded. Their individual registrations may be

under the said Act, but the Federation is an apex level body and

representing, so also taking care, of their interests. Their non-

impleadment was neither fatal nor the proceedings become not

maintainable on that ground. We reject the third objection as well.

26. Turning to the merits, we find that Section 2 Clause (h) of

the Trade Unions Act, 1926 defines a 'Trade Union'. It reads thus:

"2(h) "Trade Union" means any combination, whether temporary or permanent, formed primarily for the purpose of regulating the relations between workmen and employers or between workmen and workmen, or between employers and employers or for imposing restrictive conditions on the conduct of any trade or business, and includes any federation of two or more Trade Unions;"

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27. Pertenently, the Act is to provide for the registration of

Trade Unions, and in certain respects, to define the law relating to

registered Trade Unions. Chapter I contains preliminary provisions

including the definitions. The definition of the terms or the words

'executive', 'office bearers', 'prescribed', 'registered office' are all

appearing in the context of the definition of the term 'registered

Trade Union". That is defined under Clause (e) of Section 2 to

mean a Trade Union registered under this Act. Then, the

definition of the term 'Registrar' under Section 2 Clause (f) would

enable us to hold that if the certificate of registration was granted

by the Registrar who is a functionary under the Act and who

entertains the applications under Section 5, then, he is equally

empowered to cancel it or take cognizance of an application to

cancel the registration. The term 'Trade dispute' has some bearing

on the conclusion that we reach in this case. The term is defined

thus :

"2(g) "Trade dispute" means any dispute between employers and workmen or between workmen and workmen, or between employers and empoyers which is connected with the employment or non- employment, or the terms of employment or the conditions of labour, of any person, and "workmen"

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means all persons employed in trade or industry whether or not in the employment of the employer with whom the trade dispute arises"

28. A perusal of the above definition means, any dispute

between employers and workmen or between workmen and

workmen or between employers and employers which is

connected with the employment or non-employment or the terms

of employment or the conditions of labour, of any person, and

workmen means all persons employed in trade or industry

whether or not in the employment of the employer with whom the

trade dispute arises.

29. This would, in fact, indicate that others seeking registration

by making an application under Section 5 have to state, and

necessarily in case of a Trade Union of workmen, the names,

occupations and addresses of the place of work of the members of

the Trade Union making the application. [see Section 5(1)(aa)].

30. Mr. Patel is, therefore, right in urging that before us is a

Federation of the Labour Law Practitioners' Association. Those

practicing in Labour Law before the court or tribunal, deciding

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trade disputes must, therefore, answer the definition of the term

as set out in the Act and enabling registration of a 'Trade Union'.

True it is that Trade Union means any combination, whether

temporary or permanent, it must be formed primarily for the

purpose of regulating the relations between workmen and

employers or between workmen and workmen or between

employers and employers or for imposing restrictive conditions on

the conduct of any trade or business, and includes any federation

of two or more Trade Unions. Contextually, and in the backdrop

of the definition of the term 'Trade Dispute', this definitation of

the term 'Trade Union' has a bearing, and both the terms,

therefore, must receive an interpretation which would subserve

the object and purpose of enacting a law such as The Trade

Unions Act, 1926.

31. Mr. Nerlekar is unable to point out either from the

memorandum of its aims and objects or from other documents of

the Federation that the member associations of Labour Law

Practitioners at district level are seeking to regulate the relations

within the meaning of clause (h) of Section 2 which defines the

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word "Trade Union". Mr. Nerlekar was unable to point out as to

who is the workman and employer, or who is the employer and

employer. We do not see how Labour Law Practitioners or those

practicing Labour laws by advising both, employers and

employees/workmen in relation to 'Trade Disputes' or disputes

between them inter se function in an industry or are in

employment in any trade as such. The primary purpose, therefore,

of forming an association like a Trade Union and seeking to

regulate the relations, is hopelessly lacking in this case. The

registration that the Federation and its members have obtained as

societies under the Societies Registration Act, 1860 is intact and

untouched. Such an association, given its memorandum of aims

and objects, enlisting its duties, functions and obligations, would

enable it to take up the causes of the individual member

Association operating at the District level.

32. The practitioners at the district level represent and espouse

their cause through their District level Association at the District

level and through the Federation of such Associations at a Higher

(State) level. None, therefore, is taking away that registration or

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right guranteed by virtue of such registration. They can approach

all forums so as to give voice to their grievance and complaints

and even agitate in that regard. The question is, if they obtain

registration as a Trade Union, then, they must satisfy the statutory

definition and the test laid down by the Trade Unions Act, 1926.

If they cannot be a Trade Union, then, their registration must be

cancelled.

33. We see much substance in the contention of Mr. Patel for we

do not see any trade or business, we do not see any industry and

we do not see any relationship of employer and employer or

workmen and workmen. The district level associations as

members of the 3rd respondent, therefore, are not employees, nor

is the Federation their employer. There could be persons who

would be employed by the member district level associations, but

their relationship and qua such district level associations or the

relationship of the staff and employees of the Federation qua the

Federation are not relevant for the purpose of the present Petition

or the dispute involved therein. It is the status of the Federation or

the apex level body which is under consideration.

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34. If it could not have made an application under Chapter II for

registration as a Trade Union, having failed to answer the pre-

requisites or pre-conditions, then, its registration as a Trade Union

deserves to be cancelled. The provisions enabling seeking

registration ought to be read together and harmoniously. They

commence by Section 4 which prescribes the mode of resistration.

Then comes Section 5 which sets out the contents of an

application for registration. Section 6 prescribes the provisions to

be contained in the rules of a Trade Union. That would enable us

to conclude that a Trade Union shall not be entitled to registration

under this Act, unless the executive thereof is constituted in

accordance with the provisions of this Act, and the rules thereof

provide for the matters set out in Section 6. Apart from these

matters, there is a power conferred in the Registrar vide Section 7

to call for further particulars and to require alteration of name.

Section 8 provides for registration, but such registgration follows

the satisfaction of the Registrar that the Trade Union has complied

with all the requirements of this Act in regard to registration, and

only then the Registrar can register it as such. If it does not qualify

for registration as a Trade Union, when it fails to answer the test

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required to be satisfied and for being termed as a Trade Union,

then, obviously the registration obtained by mistake deserves to

be cancelled.

35. We do not see how, therefore, the 3rd respondent Federation

could have been conceived and viewed as a Trade Union so as to

confer upon it the right and impose upon it the liabilities of a

registered Trade Union and allow it to settle the disputes under

Chapter III of the Trade Unions Act, 1926. Mr. Patel is, therefore,

right in contending that once the Regulations prescribed by

Chapter IV Section 29 and 30 also envisage that there is a

discretion in the Government to make Regulations for the purpose

of carrying into effect the provisions of this Act, then, such of the

Regulations, forms and other parts appended thereto cannot be

ignored.

36. All of the above has thus been clearly ignored while

registering the 3rd respondent Federation as a Trade Union under

the Trade Unions Act, 1926.

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37. Once we arrive at the above conclusion, then, it is clear that

the 2nd respondent has failed to discharge and carry out his duty in

accordance with law, and particularly in terms of Section 10.

Though the registration was obtained by a mistake, the Registrar

failed to cancel it. His failure to perform a statutory duty and for

reasons which are wholly unsustainable and untenable, justify our

interference in our writ jurisdiction. We accordingly interfere in

our writ jurisdiction to quash and set aside the impugned order.

The Writ Petition accordingly succeeds. Rule is made absolute in

terms of prayer clause (a). All consequences will follow.

38. Needless to clarify that this order does not affect the status,

position, power and authority of the 3 rd respondent-Federation in

terms of it's own rules and regulations, as well as its registration

as a society under the Societies Registration Act, 1860 or any

other similar enactment.

39. At this stage, Mr. Nerlekar seeks a stay of this order. This

request is opposed by Mr. Patel. Once we give the above

clarification, then, this order and our conclusion does not, in any

vikrant 28/28 212-WP-2687-2006.odt

manner, prejudice or take away any vested right of the 3 rd

respondent-Federation. Hence, the request of Mr. Nerlekar is

refused. In the passing, we may invite the attention of Mr.

Nerlekar to a decision of the Hon'ble Supreme Court in the case of

Ex- Capt. Harish Uppal vs. Union of India & Another, reported

in AIR 2003 SC 739.

40. The Labour Law practitioners also include Advocates who

are enrolled as Advocates and are governed by the Acvocates Act,

1961. As far as their status and right claimed by them to go on a

strike is concerned, this issue is dealt with by the Hon'ble Supreme

Court in paragraphs 44 and 45 (Pages 757 and 758) of the

decision in the case of Harish Uppal (supra). We do not,

therefore, think that through the Minimum Wags Act, 1948, The

Trade Unions Act, 1926 or such enactments, the rights of the

above nature can be claimed by a section of the society who are

termed as 'noble professionals' and are part and parcel of the

sovereign function of administration of justice.

(SMT. VIBHA KANKANWADI, J.) (S. C. DHARMADHIKARI, J.)